Unilateral Change
Bargaining
The Federal Service LaborManagement Relations Statute
Changes In Conditions of
Employment
• Parties must bargain over changes in
conditions of employment.
Fed. Bur. of Prisons, FCI, Bastrop Tex., 55 FLRA 848 (1999).
2
When do you need to bargain over a
change?
• Is there a “change” in working conditions?
• Is the impact of the change in working
conditions de minimis?
• Is the proposed change “covered by” an
agreement?
• Did the union waive its right to bargain over
the proposed change?
3
Conditions of Employment
Definition
• 5 U.S.C. § 7103(a)(14)
personnel policies, practices, and matters,
whether established by rule, regulation, or
otherwise, affecting working conditions, except
that such term shall not include policies, practices,
and matters • Relating to political activities
• Relating to classification of any position; or
• Specifically provided for by Federal statute.
Antilles Consolid. Educ. Ass’n, 22 FLRA 235 (1986).
4
Conditions of Employment
• The Authority applies a two-prong test:
– Whether the matter pertains to bargaining unit
employees, and
– Whether there is a direct connection between the matter
and the work situation or employment relationship of
bargaining unit employees.
Antilles Consolid. Educ. Ass’n, 22 FLRA 235 (1986).
5
What is a change?
• A change may be a management-initiated
change in policy or a change in a past practice.
• A past practice is a practice that is consistently
and openly exercised over a significant period
of time and followed by both parties, or
followed by one party and not challenged by
the other.
U.S. Dep’t of Labor, Wash., D.C., 38 FLRA 899 (1990).
6
How do you know if there is a
change?
• The determination as to whether a change in
conditions of employment has occurred
involves a case-by-case analysis and an inquiry
into the facts and circumstances regarding the
agency's conduct and employees’ conditions
of employment.
SSA, Office of Hearings & Appeals, Montgomery, Ala., 60 FLRA
549 (2005); 92 Bomb Wing, Fairchild Air Force Base, Spokane,
Wash., 50 FLRA 701 (1995); U.S. INS, Houston Dist., Houston,
Tex., 50 FLRA 140 (1995).
7
The De Minimis Test
• The Agency does not have to bargain over a change
unless the impact of the change in working
conditions of bargaining unit employees is more than
de minimis.
• The Authority looks to the nature and extent of
either the effect, or the reasonably foreseeable
effect, of the change evident at the time the change
was proposed and implemented.
U.S. Dep’t of the Treasury, IRS, 56 FLRA 906 (2000); GSA, Reg. 9, S.F., Cal., 52 FLRA
1107 (1997); Dep’t of Health & Human Serv., Social Security Admin., 24 FLRA 403
(1986).
8
The De Minimis Test
• In applying the de minimis test, the
number of employees affected is a factor
considered, but is not a controlling
consideration.
Dep’t of HHS,SSA, 24 FLRA 403, 40708 (1996)
9
The De Minimis Test
Examples of cases where the Authority has found more than de
minimis impact include:
• SSA, Gilroy Branch Office. Gilroy, Cal., 53 FLRA 1358 (1998)
(change in appointment schedules that affected employees’ ability to
complete other work);
• U.S. Customs Serv., Sw. Region, El Paso, Tex., 44 FLRA 1128
(1992) (change in work hours that resulted in loss of overtime
opportunities);
• U.S. Dep’t of the Air Force, Air Force Materiel Command, 54 FLRA
914 (1998) (implementing a program that would affect future career
and retirement plan and involved loss of benefit of $25,000);
• U.S. Dep’t of the Treasury, INS, 56 FLRA 906 (2000) (local office
move that resulted in some computers and telephones being
inoperable, computer files not accessible, and loss of quality storage
cabinets).
10
The De Minimis Test
Examples of cases where the Authority found impact was de minimis
include:
Soc. Sec. Admin, Office. of Hearings & Appeals, Charleston, S.C., 59
FLRA 646 (2004) (reduction in reserved parking spaces where
employees had no problem securing alternate parking);
U.S. Dep’t of Homeland Sec., Border & Transp. Sec. Directorate,
Bureau. of Customs & Border Prot.., Wash., D.C., 59 FLRA 728 (2004)
(change in vessel boarding policy where the evidence failed to show
overtime opportunities or compensation, promotion or advancement
potential were impacted);
U.S. Dep’t of Homeland Sec., Border & Transp. Sec. Directorate, U.S.
Customs & Border Prot., Border Patrol, Tucson Sector, Tucson, Ariz.,
60 FLRA 169 (2004) (change resulted in increased workload but not
new duties).
11
“Covered By” Test
The “covered by” doctrine rests on the
principle that a party is not obligated to
bargain over matters contained in or
covered by an existing agreement
between the parties.
AFGE, Local 225, 56 FLRA 686, 689
(2000).
12
“Covered By” Test
• Prong 1: Is the subject matter of the change
“expressly contained” in the collective bargaining
agreement?
• Prong 2: Is the subject matter of the change
“inseparably bound up with,” and plainly an aspect
of, a subject covered by the agreement?
U.S. Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA
809 (2000); U.S. Dep’t of HHS, SSA, Balt., Md., 47 FLRA 1004
(1993).
13
“Covered By” Test
• Second prong originally used to provide
flexibility – language in proposal and
current agreement did not have to match
exactly.
• Second prong over time became very
broad and difficult to understand. To
much was being seen as covered-by. So
the GC’s current policy is not to use it.
14
What Must an Agency Do When it Proposes a
Change in Conditions of Employment?
• Provide Union reasonable notice and opportunity to
request bargaining.
• If the union requests bargaining, respond.
• Bargain to the extent required by the Statute.
• Generally, maintain the status quo until the bargaining
process is completed.
• Cooperate with Federal Service Impasses Panel, if
requested by union, prior to implementation.
U.S. DOD, Defense Commissary Ag., Peterson Air Force Base, Colo. Springs,
Colo., 61 FLRA 688 (2006); U.S. DOJ, INS, Wash., D.C., 56 FLRA 351 (2000);
U.S. INS, Wash., D.C., 55 FLRA 69 (1999).
15
When is Notice Sufficient?
• Agency must provide notice that is:
– “sufficiently specific or definitive regarding
the actual change contemplated so as to
adequately provide the union with a
reasonable opportunity to request
bargaining”.
– A notice that is conditional and qualified is
not sufficient.
Ogden Air Logistics Ctr., Hill AFB, Utah, 41 FLRA 690, 698 (1991);
Internal Revenue Service, 10 FLRA 326, 327 (1982).
16
What Must the Union Do to Protect its Right to
Bargain?
• Timely request to bargain, for additional time,
or for more information.
• Submit negotiable proposals.
• Bargain in good faith.
• Timely request FSIP assistance if impasse is
reached.
U.S. Dep’t of Labor, Wash., D.C., 60 FLRA 68, 70 (2004).
17
Did the Union Waive Its Right to
Bargain?
• By contract
– Parties may define limitations on their bargaining
rights under the Statute – i.e., time limits for
requesting bargaining. Dep’t of the Air Force, Air Force
Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA
1532 (1996).
– Was a matter “fully discussed and consciously
explored during negotiations” and whether the
union “consciously yielded or otherwise clearly
and unmistakably waived its interest in the
matter.” See U.S. Dep’t of the Interior, Wash., D.C. and U.S.
Geological Survey, Reston, Va., 56 FLRA 45 (2000); see also U.S. Dep’t
of Treasury, IRS, 56 FLRA 906 (2000).
18
AFTER THE BREAK:
WHAT CAN BE BARGAINED
Scope of Bargaining under the Statute:
Are your Proposals Negotiable?
19
WHAT IS COLLECTIVE
BARGAINING?
• Meet at reasonable times
• Make a good-faith effort to reach
agreement with respect to the conditions
of employment
• Execute, upon request, a written
document incorporating any collective
bargaining agreement reached
See
5 U.S.C. Section 7103(a)(12)
20
LIMITS ON FERERAL SECTOR BARGAINING
Proposals that are contrary to law
• 5 U.S.C. § 7117(a) establishes that management
is not obligated to bargain over matters
inconsistent with law.
Advanced Statutory Training
Collective Bargaining
21
LIMITS ON FERERAL SECTOR BARGAINING
Proposals that are contrary to law
• Specifically excluded by federal statute
– Relating to the classification of any position
– Relating to political activities
• Inconsistent with federal law or
government-wide rule or regulation
• Inconsistent with agency rule or regulation
for which a compelling need exists
• Relating to conditions of employment
22
of employees in a different bargaining unit
LIMITS ON FERERAL SECTOR BARGAINING
Proposals that fall within a Management Right
• Congress also wrote a Management
Rights Clause into the Statute; something
you have to bargain for in the Private
Sector
• Found in Section 7106(a)
• Management decisions within the scope of
this clause cannot be bargained
23
Scope of Bargaining
Management Rights Clause
5 U.S.C. § 7106(a) establishes management rights
under the Statute. The substance of
management’s decision to exercise these rights is
non-negotiable.
– Right to determine the mission, budget, organization,
number of employees and internal security practices
– In accordance with applicable laws, hire, assign,
direct, layoff, retain, suspend, remove, reduce in
grade or pay, discipline, assign work, contract out,
determine personnel, make selections for hiring, and
other action as necessary to carry out the mission
during emergencies.
Advanced Statutory Training
Collective Bargaining
24
Another Limit on Bargaining
• Congress created a second list of
managements rights on which bargaining
is allowed
• Found in Section 7106(b)(1)
• Management decisions within the scope of
this clause can be bargained, but only at
the election of the agency
25
Scope of Bargaining
Permissive Subjects
Permissive subjects:
– Numbers, types, and grades of
employees or positions assigned to any
organizational subdivision, work project,
or tour of duty; or
– Technology, methods, and means of
performing work.
Advanced Statutory Training
Collective Bargaining
26
Permissive Bargaining under
Section 7106(b)(1)
§ 7106(b)(1) is a management right to
bargain at its election.
• ULP for union to demand an agency to
reach agreement on permissive subject.
27
The Big Exception to
Management Rights – I&I
Bargaining
• Even if the substance of a decision within
the scope of a management right cannot
be bargained, management may have to
bargain over the impact and
implementation of the decision
• Commonly known as I&I bargaining
28
Where Does I&I Come From?
One source is 5 U.S.C. § 7106(b)(2):
The “procedures which management
officials of the agency will observe in
exercising” any management rights under
7106.
Mandatory (agency must bargain)
29
Where Does I&I Come From?
Another source is 5 U.S.C. § 7106(b)(3):
Appropriate arrangements for employees
adversely affected by the exercise of any
management right under 7106.
Mandatory (agency must bargain)
30
Scope of Bargaining
Procedures and Appropriate Arrangements
Procedure is not a difficult concept.
– E.g., the procedures for implementing a RIF or an
office move.
– Does not deal with what is being done so much as
with how to do it.
31
Appropriate Arrangements
• The proposal must be an "arrangement" for employees
adversely affected by the exercise of a management
right.
• The arrangement must be sufficiently "tailored" to
compensate or benefit employees suffering adverse
effects attributable to the exercise of management's
right(s).
• Is the arrangement “appropriate” or does it “excessively
interfere” with the relevant management right(s)?
Nat’l Ass’n of Gov’t Employees, Local R14-87 & Kan. Army Nat’l
Guard, 21 FLRA 24 (1986) (KANG).
32
“Arrangement”
• Proposal must seek to mitigate adverse
effects "flowing from the exercise of a
protected management right."
Advanced Statutory Training
Collective Bargaining
33
“Tailored”
• The proposal must provide "balm" to be
administered "only to hurts arising from"
the exercise of management rights.
• The proposal must not be so broad in
sweep that the "balm" would be applied to
employees indiscriminately without regard
to whether the group as a whole is likely to
suffer, or has suffered, adverse effects as
a consequence of management action.
Advanced Statutory Training
Collective Bargaining
34
“Appropriate”
• The Authority weighs
– the benefits afforded to employees under the
arrangement
• against
– the intrusion on the exercise of management's
rights.
Advanced Statutory Training
Collective Bargaining
35
Some Key Points on
Management Rights
• Subject to certain exceptions, agencies cannot bargain
over proposals that would excessively interfere with
exercising statutory management rights under 7106(a).
• An agency can, but is not required to bargain over
proposals concerning a permissive subjects (“types,
numbers, grades” etc.) under 7106(b).
• An agency cannot assert “management rights” as a basis
to refuse to bargain over a proposal that is a procedure
or an appropriate arrangement under 7106(b)(2) or (3).
36
Negotiability Appeals
• When an agency refuses to bargain over a
proposal because it claims that it is not
negotiable, the union may file an appeal
with the Authority. There are specific
regulations that govern when an agency
claim of this sort triggers a right to file an
appeal, and how the appeal is filed.
• Unlike ULPs, these go directly to the
Authority.
37
Negotiability Appeals
• On our website is a “Guide to Negotiability
Appeal” that goes over what has to be filed and
when.
• Key Point: On cases involving proposals, §
7117(c)(2) of the Statute requires the union to
file its petition with the Authority “on or before
the [fifteenth] day after the date on which the
agency first makes the allegation” of
nonnegotiability.
38
Negotiability Appeals
• Negotiability issues can also be resolved
through the unfair-labor-practice (ULP) process.
This is appropriate where the parties have both
negotiability and bargaining obligation disputes.
There are specific Authority regulations that
explain the procedural options of parties who
have a bargaining problem that includes both a
bargaining-obligation dispute and a negotiability
dispute.
39
How do you Know if a Proposal
is Negotiable?
• You have to research the Authority cases.
• Find language that was upheld in a prior
negotiability appeal and use it as a
template for what you are doing.
40
Framework for Resolving
Bargaining Impasses
• When negotiations are at an impasse,
either party may request assistance by the
Federal Service Impasses Panel.
– § 7119(b)(1)
• If one party timely invokes the services of
the Panel, the status quo must be
maintained to the maximum extent
possible.
U.S. Immigration & Naturalization Serv., Wash., D.C., 55
FLRA 69 (1999)
41